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Tuesday, December 30, 2014

Kiddie dwi does not count as prior dwi offense

STATE OF NEW JERSEY, 
Plaintiff-Respondent, 
v. 
NICHOLAS J. MINOTTI, 
Defendant-Appellant. 
Decided October 27, 2014 before the Honorable Edward A. Jerejian, J.S.C. 
On appeal from Hackensack Municipal Court, Docket No. 14-21. 


 NOT FOR PUBLICATION WITHOUT THE 
APPROVAL OF THE COMMITTEE ON OPINIONS 
SUPERIOR COURT OF NEW JERSEY 
DOCKET NO: 14-21 
BMA: 003-20-14 
________________________________________________________________________ 
This is an appeal from the Hackensack Municipal Court. On November 28, 2013, the Hackensack Police Department issued Nicholas J. Minotti three summonses: (1) driving while intoxicated contrary to N.J.S.A. 39:4-50; (2) failure to maintain lane contrary to N.J.S.A. 39:4-88b; and (3) reckless driving contrary to N.J.S.A 39:4-96. On February 26, 2014, the defendant appeared before the Honorable Louis J. Dinice, J.M.C. and attempted to plead guilty to N.J.S.A. 39:4-50.14, operation of a motor vehicle by a person who has consumed alcohol but is not of legal age to purchase alcohol. (1T:2 to 9). Although the prosecutor amended the charge, Judge Dinice denied the plea on said amended charge. (1T:2-6 to 3-18). At the time of this offense the defendant was under the age of 21. (3T:12-1 to 2) 2 

Thereafter, defense counsel filed a motion for Judge Dinice’s recusal. On March 26, 2014, Judge Dinice heard defendant’s motion for recusal and the motion was subsequently denied. (2T:5-3 to 4). 
The matter was then adjourned pending defendant’s appeal to the Superior Court for immediate relief on an Order to Show Cause. (2T:10-9 to 14). On April 1, 2014, the Honorable Liliana S. DeAvila-Silebi, P.J.Crim, denied defendant’s request. 
The following day, April 2, 2014, defendant appeared with counsel before Judge Dinice for trial. (3T). At the end of trial, the defendant was found guilty of DWI and the stipulated charge of failure to maintain lane, the defendant was found not guilty of reckless driving. (3T:13-9 to 15). The defendant had a previous DWI as minor conviction, contrary to N.J.S.A. 39:4-50.14, which led Judge Dinice to sentence the defendant as a second offender. (3T:18-24 to 19-4). The Court stayed the fines pending appeal, but refused to stay the license suspension of the defendant. (3T:21-6 to 8). 
Defendant filed a timely notice of appeal to the Superior Court. This Court heard oral arguments on October 1, 2014. 
STATEMENT OF FACTS 
On November 29, 2013, Hackensack Police Officer Kley Peralta was on patrol in the city of Hackensack. (3T:6-16 to 18) Defendant was pulled over by Officer Peralta and defendant has stipulated that the Officer had probable cause to pull the defendant over. (3T:4-6 to 10; T:5-4 to 7). Subsequently, the defendant admitted that he had consumed alcohol and he was under the legal age to do so. (3T:8-4 to 6). Furthermore, Officer Peralta smelt alcohol coming from the defendant’s vehicle. (3T:8-16 to 17). 
Officer Peralta proceeded to administer field sobriety test to the defendant, the 3 

first test being the horizontal gaze nystagmus test. (3T:9-6 to 7). According to Officer Peralta, the defendant did not follow his eyes to his pen and Officer Peralta believed that the defendant refused to comply with the test. (3T:9-9 to 15). 
Next, a walk and turn test was administered on a blacktop that was free of debris. (3T:9-16 to 18). While Officer Peralta was instructing the defendant on how to perform the walk and turn test, the defendant was swaying from side to side. (3T:9-18 to 20). When conducting the test the defendant: (1) began the test prematurely; (2) stumbled on steps 1, 3, 4 and 5; (3) did not count out loud as per his instructions; and (4) turned left into the middle of the street as oppose to a complete turn. (3T:9-21 to 10-6). Officer Peralta determined that the defendant failed the walk and turn test. (3T:10-10 to 13). 
Next, Officer Peralta gave the defendant instructions and administered the one-leg stand test. (3T:10-16 to 17). During the test the defendant; (1) placed his foot down after counting to 1,001; (2) began to raise his leg and lost balance at 1,004; (3) and was swaying side-to-side throughout the 30 second test. (3T:10-17 to 25). At this point, Officer Peralta believed the defendant failed the one-leg stand test. (3T:11-1 to 2) 
When looking at the totality of the circumstances, Officer Peralta was under the opinion that the defendant was driving while under the influence of an intoxicating substance. (3T:11-5 to 16). 
STANDARD OF REVIEW 
The Appellate Division has specified that the standard of review to be used by the Superior Court Law Division when hearing a municipal appeal is de novo. R. 3:23-8a. The function of the court is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the 4 

opportunity of the magistrate to judge the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). A trial de novo requires the trier to make findings of fact. The Law Division’s role is not the appellate function governed by the substantial evidence rule, but rather an independent fact-finding function in respect of Defendant’s guilt or innocence. State v. States, 44 N.J. 285, 293 (1965); see also R. 3:23-8a. Appellate courts should defer to the credibility findings of the trial court because they are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. State v. Locurto, 157 N.J. 463, 475 (1999). 
LEGAL ARGUMENT 
POINT 1: 
DEFENDANT IS GUILTY DE NOVO OF DRIVING WHILE INTOXICATED, CONTRARY TO N.J.S.A. 39:4-50. 
The defendant argues that due to him being under the age of twenty-one (21) and the lack of an Alcotest reading, the defendant should have been given the benefit of the doubt and been convicted of DWI as a minor contrary to N.J.S.A. 39:4-50.14. 
The State argues that although defendant is under the age of twenty-one (21), there was sufficient observational evidence to convict the defendant of DWI contrary to N.J.S.A. 39:4-50. 
N.J.S.A. 39:4-50.14, states that the State must prove (1) the that individual is under the legal age to purchase alcohol, and (2) the individual has a BAC between .01% and .08%. In the instant matter defendant was never charged with that offense and 
there was no evidence presented to the court defendant’s BAC was below .08%. 
Instead, the State proved defendant was driving while intoxicated based on 5 

observational evidence. (T3). N.J.S.A. 39:4-50 provides that a person shall not “operate a motor vehicle while under the influence of intoxicating liquor.” N.J.S.A. 39:4-50(a). According to State v. Emery, a person need not be absolutely drunk to be considered under the influence, instead he just need be “imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.” 27 N.J. 348, 355 (1958). The courts will consider a wide range of factors when determining whether defendant was operating a motor vehicle while intoxicated beyond a reasonable doubt. State v. Cleverley, 348 N.J. Super. 455, 465 (App Div. 2002). When determining whether a defendant is guilty beyond a reasonable doubt and violated N.J.S.A. 39:4-50, observational evidence by itself can be sufficient. State v. Liberatore, 209 N.J. Super. 580, 589 (Law Div. 1996). 
As stated previously, the defendant was pulled over for failure to maintain lanes. (3T:4-6 to 10). Officer Peralta smelt alcohol emanating from the vehicle and the defendant admitted to the Officer that he had consumed alcohol. (3T:8-3 to 8). 
As per Officer Peralta’s testimony, the defendant did not cooperate with the horizontal gaze nystagmus test. (3T:9-18 to 20). Furthermore, the defendant failed the walk and turn test by swaying side to side during the instructions and beginning the test prematurely. (3T:9-16 to 10-13). The defendant stumbled on steps 1, 3, 4, and 5 and failed to count his steps out loud as per the officers instructions. (3T:9-21 to 10-3). Lastly, instead of fully turning around after his 9th step, the defendant turned towards the middle of the road. (3T:10-3 to 6). 
In regards to the one leg stand test, the defendant had to put his foot on the ground to maintain balance after his first count of 1,001. (3T:10-16 to 21). Upon his second 6 

attempt the defendant lost his balance at 1,004. (3T:10-21 to 22). The defendant attempted the test a 3rd time and had a noticeable sway throughout the completion of the test. (3T:10-22 to 25). 
The trial court, as well as this court analyzing the case de novo, find sufficient observational evidence that the defendant was driving while intoxicated contrary to N.J.S.A. 39:4-50. 
POINT 2 
THE TRIAL COURT ERRED WHEN THEY SENTENCED THE DEFENDANT AS A 2ND OFFENSE CONTRAY TO N.J.S.A 39:4-50. 
The defendant argues that the trial court erred when they sentenced him according to the mandated enhanced penalties for subsequent violations of N.J.S.A. 39:4-50. 
The State submits that defendant is a second offender under N.J.S.A. 39:4-50 and must be sentenced as such. 
It should be noted that are no reported cases directly addressing this issue. 
With that said, this Court takes the position that defendant’s previous violation for N.J.S.A. 39:4-50.14 requires the defendant to be under the age of twenty one (21) and have a BAC level of 0.01% but less than 0.08%, which is a distinct and separate offense involving different elements as discussed in Point 1 above. 
N.J.S.A. 39:4-50(a)(2) and N.J.S.A. 39:4-50(a)(3) contain mandatory enhanced penalties for second, third and subsequent violations. The statute involves previous convictions under New Jersey law for violation of N.J.S.A. 39:4-50 only and does not include second, third and subsequent violations for N.J.S.A. 39:4-50.14. 
Therefore, the defendant was improperly sentenced as a second offender contrary to N.J.S.A. 39:4-50 and instead should be sentenced as a first offender under that statute. 7 

POINT 3 
THE MUNICIPAL COURT WAS WITHIN THE BOUNDS OF JUDICIAL DISCRETION WHEN THEY REJECTED DEFENDANT’S PLEA AGREEMENT. 
The defendant argues that the Municipal Judge improperly interfered with the Municipal Prosecutors discretion to enter into a plea agreement to amend the charge. 
The State argues that the Municipal Judge was within its discretion when he rejected the plea agreement. 
Upon review of a judicial rejection of a proffered plea agreement, State v. Daniels states, “…the appropriate standard to be applied must be that of erroneous exercise of judicial discretion, not whether the recommended plea agreement constitutes and abuse of prosecutorial discretion.” 276 N.J. Super. 483, 487 (App. Div. 1994). A municipal judge is within its discretion when they reject any agreement in the interest of justice. State v. Marsh, 209 N.J. Super. 663, 666 (App. Div. 1996). 
All plea agreements entered into must follow the guidelines set forth by the Supreme Court. R.7:6-2(d). More specifically, in State v. Hessen the Supreme Court upheld a prohibition on plea bargaining in DWI cases. 145 N.J. 441, 454 (1996). Amending a DWI charge under N.J.S.A. 39:4-50 is a violation of the Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey. State v. Marsh, 209 N.J. Super. 663, 667 (App. Div. 1996). Such a plea offer cannot be enforced by the municipal court. Id. 
In this case, the Municipal Judge was acting within the bounds of judicial discretion and was precluded from accepting a plea to amend the charges under N.J.S.A. 39:4-50. Accepting a plea which would subsequently downgrade a meritorious offense under N.J.S.A. 39:4-50 is a clear violation of guidelines set forth in the Current N.J. 8 

Court Rules. 
Therefore, the Municipal Judge was within his judicial discretion when he rejected the plea agreement. 
CONCLUSION 
Based on the record below, and after oral argument and a de novo hearing, this Court finds that the Municipal Court correctly found the defendant guilty of Driving While Intoxicated contrary to N.J.S.A. 39:4-50 through observational evidence but the defendant was improperly sentenced as a second offender. Furthermore, this Court finds the Municipal Judge was within his discretion to deny the plea agreement. 
As such, this Court imposes the following fines and penalties: 
For violation of N.J.S.A. 39:4-50, driving while intoxicated, defendant is sentenced as follows: 
Fine: $250 
Court costs: $33 
VCCB: $50 
DDEF: $200 
SNSF: $75 
Driver License Suspension: 3 months 
IDRC: 12 hours 
For violation of N.J.S.A. 39:4-88b, failure to maintain lane, defendant is sentenced as follows: 
Fine: $56 
Court costs: $33 
Driver license points: 2 points 
______________________________ 

Date: October 27, 2014 Honorable Edward A. Jerejian, J.S.C. 

Sunday, December 21, 2014

School Bus Driver Who Left Young Child on Bus Committed Act of Neglect. New Jersey Department of Children and Families v. R.R

 School Bus Driver Who Left Young Child on Bus Committed Act of Neglect. New Jersey Department of Children and Families v. R.R. 436 NJ Super. 53 (App. Div. 2014)
    Appellant was a school bus driver. At the end of her route she did not visually inspect the bus to make sure there were no children left on board, as required by N.J.S.A. 18A:39-28. Instead, she had relied upon a school bus aide's representation there were not any children on the bus, even though in the past the driver had found the aide to be unreliable.  In fact, a five-year old was left on board after the bus driver left for the day. The child was not discovered for fifty-five minutes.

     The court affirmed the finding of the Assistant Commissioner of the Office of Performance Management and Accountability of the Department of Children and Families that the bus driver had engaged in willful and wanton conduct in violation of N.J.S.A. 9:6-8.21(c)(4)(b), for relying upon an undependable aide's representation and not personally inspecting the bus herself to determine if any children remained on board.